Citation Nr: 18151835 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 13-28 750 DATE: November 20, 2018 ORDER Entitlement to service connection for aortic dissection (claimed as residual of mercury exposure) is granted. Entitlement to service connection for hypertension due to mercury exposure is granted. FINDINGS OF FACT 1. The evidence of record is for a finding that the Veteran’s current aortic dissection is causally related to mercury exposure in service. 2. The evidence of record is for a finding that the Veteran’s current hypertension is causally related to his mercury exposure in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for aortic dissection (claimed as residual of mercury exposure) have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for hypertension due to mercury exposure have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to September 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Appeals (VA) Regional Office (RO) in Houston, Texas. In February 2016, the Veteran testified before the undersigned Veterans Law Judge at a live videoconference Board hearing. A transcript of the hearing is of record. Regarding the October 2017 remand directives, the Board finds that there has been substantial compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Certain “chronic diseases” may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. §3.303(b). Cardiovascular-renal disease, including hypertension, is considered to be a “chronic disease” under 38 C.F.R. § 3.309(a). 1. Entitlement to service connection for aortic dissection (claimed as residual of mercury exposure) The Veteran contends that his exposure to mercury vapors, while working as a weather equipment specialist in service, directly caused of his aortic dissection. The record includes findings that the Veteran has a current diagnosis of aortic dissection, as shown in numerous medical records; and, the Board concludes that the competent, credible, and probative evidence of record is for a finding that the Veteran’s current disability is related to his military service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records (STRs) are silent for any complaints, diagnosis, symptoms, or treatments of aortic dissection or any heart condition. In September 2011, the Veteran was afforded a Heart Conditions DBQ examination, to which the examiner confirmed the diagnosis of aorta dissection; however, opined that it was less likely than not that the Veteran’s mercury exposure caused his aortic dissection. The examiner’s rationale is based on mercury not being a listed risk factor for the disease. However, the Veteran submitted a May 2012 email from Dr. B.H., Ph.D. (“Dr. B.H.”), the leading international expert on mercury toxicity, to refute the negative nexus opinion given by the September 2011 DBQ examiner. In that email, Dr. B.H. opined that mercury and mercury containing compounds lead to cardiovascular issues. See Email from Dr. B.H. In consideration of the new evidence from Dr. B.H., the Veteran was afforded a new Heart Conditions DBQ examination in May 2016, to address the statements made by Dr. B.H. The examiner again opined, it was less likely than not that the Veteran’s post-service aortic dissection was caused by or related to exposure and/or poisoning by mercury. The examiner’s rationale was that the STRs do not document any exposure or poisoning of mercury during the Veteran’s active service, nor do they document a diagnosis of aortic dissection. Additionally, the examiner noted there were no signs and/or symptoms found to suggest exposure of toxic levels of mercury, and exposure to mercury is not a risk factor for the Veteran’s disease. In September 2016, the Veteran submitted a lay statement in response to the May 2016 DBQ examination, refuting the examiner’s rationale. The Veteran reiterated that he was exposed to mercury, as his personnel records reflect that he was trained to repair and rebuild mercury barometers; and the Veteran requested to be tested for mercury by a specialized toxicologist who understands “heavy metal poisoning,” as his exposure would reveal much higher levels than normal. See Correspondence, September 2016. Additionally, in a September 2010 statement, the Veteran stated that he was exposed to dangerous amounts of mercury vapor for 6-8 hours per day for approximately 6 weeks during service, repairing mercury barometers as a weather equipment specialist; as well as, testifying at the Board Hearing that mercury spilled on him one time, and he was exposed to 9 times the maximum amount of mercury allowable by 1973 standards. See also Board Hearing Transcript at 3-6. A review of the Veteran’s personnel records reflect that the Veteran was a weather equipment repairman working on barometers in service, and there is no evidence of record to refute that the Veteran’s occupation exposed him to mercury during service. The Board finds the Veteran’s statements to be competent and credible; and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran was exposed to mercury in service. However, the Board notes that the Veteran contends that his current exposure to mercury and his diagnosis of aortic dissection is related to his military service, however, a lay person is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); See Jandreau v. Nicholson, 492 F.3d. 1372, 1376-77 (Fed. Cir. 2007) (noting general competency to testify as to symptoms but not provide medical diagnosis). Thus, the Veteran’s lay statements regarding a medical finding that his aortic dissection was caused by his mercury exposure in service are not competent, as medical expertise is required to determine causation of a diagnosis; and consequently, is afforded no probative weight. The Veteran has submitted two internet articles to support his claim, which have been carefully reviewed and considered by the Board. These articles include, “The role of mercury and cadmium heavy metals in vascular disease, hypertension, coronary heart disease, and myocardia infarction,” and “Case Definition: Mercury (Element).” Unfortunately, there is no evidence in these articles that discuss the etiological association, nor do they mention any etiological relationship between the Veteran’s aortic dissection and mercury exposure during his service. Therefore, these materials submitted by the Veteran do not rise to the requisite level of certainty needed to be considered probative evidence; and thus, the Board finds these materials lacking in probative value. As such, these articles are not accorded significant evidentiary weight. Regarding the DBQ examinations in September 2011 and May 2016, the Board finds that in both examinations, the examiner’s failed to consider, in their etiology opinions, the Veteran’s competent and credible lay statements regarding his exposure to mercury while in service. Additionally, neither examinations addressed Dr. B.H.’s email regarding a connection between mercury exposure and cardiovascular issues; and lastly, both opinions are based on the lack of documentation in the STRs regarding the Veteran’s symptoms and/or exposure to mercury. Therefore, the Board finds these examinations inadequate for adjudication. See Barr v. Nicholson, 21 Vet. App. 303 (once VA undertakes the effort to provide an examination, it must provide an adequate one); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding that the absence of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Therefore, the Board affords these DBQ examinations little probative weight. Concerning Dr. B.H.’s email, the Board finds this email to be competent, credible, and highly probative. Dr. B.H. has a Ph. D. in chemistry-biochemistry, and is considered the leading international expert on mercury toxicity. After receiving the Veteran’s lay statements regarding his direct exposure to mercury vapors in service, Dr. B.H. opined that “obviously, mercury and mercury containing compounds cause a breakdown of the endothelial membranes that line the arteries and lead to leakage and atherosclerotic plaques and other cardiovascular issues.” See Email from Dr. B.H. Therefore, based on Dr. B.H.’s credentials, expertise of mercury toxicity, and his positive etiology opinion regarding mercury exposure and cardiovascular issues, the Board is inclined to favorably adopt this opinion. Thus, the Board finds that in resolving all reasonable doubt in favor of the Veteran, service connection for the Veteran’s aortic dissection is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990); 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, 3.303(b). 2. Entitlement to service connection for hypertension due to mercury exposure The Veteran contends that his current diagnosis of hypertension was caused by his mercury exposure during military service. Service connection is not warranted for the Veteran’s hypertension as a chronic disease under the provisions of 38 C.F.R. §§ 3.307 and 3.309. The medical evidence, and the Veteran’s lay statements, establish that the Veteran’s hypertension was first diagnosed in the early 1980’s more than 5 years after the Veteran’s separation from active duty service. As noted above and in this case, chronic diseases, such as hypertension, is only subject to presumptive service connection if manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran’s hypertension was not incurred until years after service and presumptive service connection for this disability as a chronic disease is not warranted. Although service connection on a presumptive basis is not applicable, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, the evidence of record does support a conclusion that the Veteran’s hypertension was caused by his mercury exposure in service. The Veteran contends that his exposure to mercury vapors, while working as a weather equipment specialist in service, directly caused his hypertension. In September 2011, the Veteran was afforded a Hypertension DBQ examination, which the examiner confirmed the diagnosis of hypertension; however, opined that it was less likely than not that the Veteran’s mercury exposure caused his hypertension. The examiner’s rationale is based on mercury not being a listed risk factor for the disease. However, the Veteran submitted a May 2012 email from Dr. B.H., Ph.D. (“Dr. B.H.”), the leading international expert on mercury toxicity, to refute the negative nexus opinion given by the September 2011 DBQ examiner. In that email, Dr. B.H. opined that mercury and mercury containing compounds can lead to cardiovascular issues. See Email from Dr. B.H. In consideration of the new evidence from Dr. B.H., the Veteran was afforded a new Hypertension DBQ examination in May 2016, to address the statements made by Dr. B.H. The examiner again opined, it was less likely than not that the Veteran’s post-service hypertension was caused by or related to exposure and/or poisoning by mercury. The examiner’s rationale was that the STRs do not document any exposure or poisoning of mercury during the Veteran’s active service, the Veteran’s STRs do not document a diagnosis of hypertension, nor were there any signs and/or symptoms found to suggest exposure of toxic levels of mercury, as the Veteran was diagnosed with hypertension in 1982 (which is 7 years post discharge). In September 2016, the Veteran submitted a lay statement in response to the May 2016 VA examination, refuting the examiner’s rationale. The Veteran reiterated that he was exposed to mercury, as his personnel records reflect that he was trained to repair and rebuild mercury barometers; and the Veteran requested to be tested for mercury by a specialized toxicologist who understands “heavy metal poisoning,” as his exposure would reveal much higher levels than normal. See Correspondence, September 2016. Additionally, in a September 2010 statement, the Veteran stated that he was exposed to dangerous amounts of mercury vapor for 6-8 hours per day for approximately 6 weeks during service repairing mercury barometers as a weather equipment specialist; as well as, testifying at the Board Hearing that mercury spilled on him one time, and he was exposed to nine times the maximum amount of mercury allowable by 1973 standards. See also Board Hearing Transcript at 3-6. A review of the Veteran’s personnel records reflect that the Veteran was a weather equipment repairman working on barometers in service, and there is no evidence of record to refute that the Veteran’s occupation exposed him to mercury during service. The Board finds the Veteran’s statements to be competent and credible; and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran was exposed to mercury in service. However, the Board notes that the Veteran contends that his current exposure to mercury and his diagnosis of hypertension is related to his military service, however, a lay person is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); See Jandreau v. Nicholson, 492 F.3d. 1372, 1376-77 (Fed. Cir. 2007) (noting general competency to testify as to symptoms but not provide medical diagnosis). Thus, the Veteran’s lay statements regarding a medical finding that his hypertension was caused by his mercury exposure in service are not competent, as medical expertise is required to determine causation of a diagnosis; and consequently, is afforded no probative weight. The Veteran has submitted 3 internet articles to support his claim, which have been carefully reviewed and considered by the Board. These articles include, “The role of mercury and cadmium heavy metals in vascular disease, hypertension, coronary heart disease, and myocardia infarction,” “Case Definition: Mercury (Element),” and “Hypertension.” In the first article, it explicitly states that “the clinical consequences of mercury toxicity include hypertension…heavy metal toxicity especially mercury should be evaluated in any patient with hypertension.” See MC. Houston (2007, March). The role of mercury and cadmium heavy metals in vascular disease, hypertension, coronary heart disease, and myocardia infarction (http://www.ncbi.nlm.nih.gov/pubmed/17405690). This article clearly recognizes the etiology relationship between mercury exposure and its effects on heart conditions, including hypertension. Therefore, the Board affords this article significant evidentiary weight. However so, regarding the other 2 articles, there is no evidence in these articles that discuss the etiological association, nor do they mention any etiological relationship between the Veteran’s hypertension and mercury exposure during his service. Therefore, these 2 articles submitted by the Veteran do not rise to the requisite level of certainty needed to be considered probative evidence. As such, the 2 articles are not accorded significant evidentiary weight. Regarding the DBQ examinations in September 2011 and May 2016, the Board finds that in both examinations, the examiner’s failed to consider, in their etiology opinions, the Veteran’s competent and credible lay statements regarding his exposure to mercury while in service. Additionally, neither examinations addressed Dr. B.H.’s email regarding a connection between mercury exposure and cardiovascular issues; and lastly, both opinions are based the lack of documentation in the STRs regarding the Veteran’s symptoms and/or exposure to mercury. Therefore, the Board finds these examinations inadequate for adjudication. See Barr v. Nicholson, 21 Vet. App. 303 (once VA undertakes the effort to provide an examination, it must provide an adequate one); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding that the absence of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Therefore, the Board affords these DBQ examinations little probative weight. Concerning Dr. B.H.’s email, the Board finds this email to be competent, credible, and highly probative. Dr. B.H. has a Ph. D. in chemistry-biochemistry, and is considered the leading international expert on mercury toxicity. After receiving the Veteran’s lay statements regarding his direct exposure to mercury vapors in service, and his long history of hypertension, Dr. B.H. opined that “obviously, mercury and mercury containing compounds cause a breakdown of the endothelial membranes that line the arteries and lead to leakage and atherosclerotic plaques and other cardiovascular issues.” See Email from Dr. B.H. Therefore, based on Dr. B.H.’s credentials, expertise in mercury toxicity, and his positive etiology opinion regarding mercury exposure and cardiovascular issues, the Board is inclined to favorably adopt this opinion. Thus, the Board finds that with Dr. B.H.’s email and the article mentioned above, and resolving all reasonable doubt in favor of the Veteran, service connection for   the Veteran’s hypertension is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990); 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, 3.303(b). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel